Law and Order: Life imitates art – or is the other way around?

I am a major fan of  Law and Order.  The original not any of the spin offs.  I still like to catch a re-run now and then and particularly like the older ones.  Last week a story in the New York Times about Robert M. Morgenthau the retired DA from Manhattan reminded me of the show.  Morgenthau is the model for the original DA, Adam Schiff, from the TV show. Morgenthau retired about three years ago at 90.  He had been DA for 35 years.

Morgenthau is still practicing law.

Mr. Morgenthau, 93, and two other prominent former prosecutors are asking the United States Supreme Court to take up the case of William Ernest Kuenzel, who has been on death row in Alabama for 24 years.

Based on the testimony of two witnesses, Mr. Kuenzel was convicted in 1988 of murdering a convenience store clerk. Records that became available only in 2010 revealed that those two witnesses — one of whom admitted that he himself was involved in the murder — actually did not implicate Mr. Kuenzel when they first spoke with the authorities. In fact, they originally gave entirely different accounts from what they testified to at trial, but the defense lawyer was unaware that their stories had changed. So were the jurors.

Mr. Morgenthau learned about the case from Jeffrey Glen, a law partner of his late son-in-law. Their firm, Anderson Kill & Olick, was working on the appeal, along with David Kochman. To Mr. Morgenthau’s disbelief, the case was rejected by federal courts in Alabama, which ruled that the new evidence did not “refute the possibility that the defendant committed the crime.”

“It’s so wrong to say there’s presumption of guilt because he was convicted once — without the newly discovered evidence,” Mr. Morgenthau said. “I just thought that was off the wall.”

So Mr. Morgenthau contacted 2 other former DA’s and they have filed a friend of the court brief for the Supreme Court asking them to take the case on appeal.

He contacted Gil Garcetti, who served 32 years in the Los Angeles district attorney’s office, and E. Michael McCann, who was the district attorney of Milwaukee for 38 years, and they agreed to join him in a friend-of-the-court brief.

The opening lines explained why their views were worth hearing: They wrote “from the unique perspective of having overseen and been ultimately responsible for more than 7,000,000 criminal prosecutions.”

The concept of new evidence was what led to the reversal of the conviction of five teenaged boys for the attempted murder of  a Central Park jogger.  In 2009 Carlin DeGuerin Miller wrote for a CBS blog

But his tenure hasn’t been without its share of detractors and controversies,
one of the biggest being the wrongful convictions in the 1989 Central Park
Jogger case. In 2002, DNA evidence surfaced that incriminated someone else in
the rape and Morgenthau himself appeared in court to agree with the defense
request to dismiss the charges.

A good prosecutor knows when to cut his losses.  According to the Times, Morgenthau said

“That was a matter of newly discovered evidence,” he said. “I had to act. This case reminded me of that.”

Law and Order lives on in re-runs and Robert Morgenthau is still fighting the good fight for real.

Robert M. Morgenthau is asking the United States Supreme Court to take on the case of a man who has been on death row in Alabama for 24 years.

Robert M. Morgenthau is asking the United States Supreme Court to take on the case of a man who has been on death row in Alabama for 24 years.

Photograph Hiroko Masuike/The New York Times

Impasse?! We should look at the Progressive Caucus Budget

President Obama met with the Republicans in the House yesterday.  I think Politico had the best take on the meeting.

After years of pining for more face time with the president, House Republicans  found out Wednesday that Barack Obama looks and sounds the same behind closed  doors as he does on TV.

President Obama meets with Congress. AP Photograph

President Obama meets with Congress. AP Photograph

I think they are finally learning what many of us have known for a while:  what you see is what you get with Barack Obama.  Michelle has been trying to tell everyone this for years.  So he has his line and the Republicans led by Paul Ryan have theirs.  But where does that leave the rest of  us?  How to deal in a meaningful way with the sequester and the budget?  I see two paths:  One, those affected by the cuts start putting on the pressure and two, we begin looking at alternatives to either the Republican or White House budget proposals.

On the first, the lobbying has begun.  The New York Times reports

Construction companies are lobbying the government to spare their projects from across-the-board cuts. Drug companies are pleading with the White House to use all the fees they pay to speed the approval of new medicines.

And supporters of Israel have begun a campaign to make sure the Jewish state receives the full amount of military assistance promised by the United States.

A frenzy of lobbying has been touched off by President Obama’s order to slice spending this year by $85 billion, divided equally between military and civilian programs. The cuts have created new alliances and strange bedfellows.

Hunter R. Rawlings III, a historian of ancient Greece who is the president of the Association of American Universities, joined Wesley G. Bush, the chief executive of Northrop Grumman, the maker of surveillance drones and B-2 bombers, in a news conference in which they denounced the automatic cuts known as sequestration.

Health care and education groups, advocates for poor people, and state and local officials who fought in the past for bigger budgets are now trying to minimize the pain.

How much money do you think will be spent on lobbying?  I don’t even want to begin to add it up.  What a waste of money.  But I guess some people will still have jobs.

For an alternate budget we can look at the Congressional Progressive Caucus budget proposal.    The Economic Policy Institute assisted in putting the budget together and scoring it.  Dean Baker from the Center for Economic and Policy Research calls it “A Serious Budget That the Serious People Won’t Take Seriously”.  The Progressive Caucus has been proposing budgets for a number of years now and takes the position that if their proposals had been adopted, we wouldn’t be in the mess we are in now.

So what exactly are they proposing?

Direct hire programs that create a School Improvement Corps, a Park Improvement Corps, and a Student Jobs Corps, among others.

Targeted tax incentives that spur clean energy, manufacturing, and cutting-edge technological investments in the private sector.

Widespread domestic investments including an infrastructure bank, a $556 billion surface transportation bill, and approximately $2.1 trillion in widespread domestic investment.

Ends tax cuts for the top 2% of Americans on schedule at year’s end

Extends tax relief for middle class households and the vast majority of Americans

Creates new tax brackets for millionaires and billionaires

Eliminates the tax code’s preferential treatment of capital gains and dividends

Abolishes corporate welfare for oil, gas, and coal companies

Eliminates loopholes that allow businesses to dodge their true tax liability

Calls for the adoption of the “Buffett Rule”

Creates a publicly funded federal election system that gets corporate money out of politics for good.

Provides a Making Work Pay tax credit for families struggling with high gas and food cost 2013-2015

Extends Earned Income Tax Credit, and the Child and Dependent Care Credit

Invests in programs to stave off further foreclosures to keep families in their homes

Invests in our children’s education by increasing Education, Training, and Social Services

It would also end the war in Afghanistan and do selective, not blanket cuts to the military budget.  It basically spends money to put people back to work and stabilize the economy.  This assumes that people who work pay taxes and put money back into the economy.  It also achieves deficit reduction.  All through government spending.  As Dean Baker poinst out

For those upset that the budget debate is getting ever further removed from the real world problems of an economy that is suffering from a deficit of 9 million jobs, there is good news. The Congressional Progressive Caucus (CPC) has produced a budget that is intended to make the unemployment situation better rather than worse.

The story of course is that we are still in a situation where we need the government as a source of demand in the economy. This is independent of how much we like the government or the private sector. The private sector does not expand and create jobs just because governments want it to, as is being discovered now by leaders in the United Kingdom, Greece, Italy, Spain and everywhere else where deficit reduction is now in vogue. In the current economic situation, loss of demand from the government is a loss of demand to the economy. That is why recent steps to reduce the deficit, such as the ending of the payroll tax cut (which put money in consumers’ pockets) and the sequester, will lead to slower growth and higher unemployment.

Would this happen with the adoption of the progressive budget?  I don’t know, but I know that what is going on now isn’t working either.  And what is worse, people are tuning out and shrugging their shoulders assuming nothing can be done.

Gail Collins has this fantasy.

White smoke poured from the Capitol today and crowds of onlookers broke into shouts of jubilation, crying: “We have a budget!”

Inside, where the nation’s legislators had been walled off in seclusion, the newly chosen tax-and-spending plan was garbed in the traditional brass staples for its first public appearance. Insiders said it planned to take the name of Budget for Fiscal Year 2014.

I guess that is alternative number three.  Maybe we should try sequestering Congress.

Star Trek or Star Wars

I’m a fan of the original Star Trek and of the first Star Wars trilogy.  I guess I dropped out after that, maybe moved on or something.  But putting that aside, I love this Ruben Bolling.  Sums up the cultural reference controversy and the sequester all in one.

tom 3-13-2013

Chief Justice Roberts, voting rights and statistics

During the oral arguments for Shelby County v. Holder, Chief Justice John Roberts quoted some statistics that, according to his interpretation, showed the turnout ratio of minority voters to white voters was worse in Massachusetts than in any other state.  This prompted a quick response from the Massachusetts election officials and a more measured one from Nate Silver on FiveThirtyEight.  As the Chief Justice may be learning, statistics are tricky things.

The day after the remarks by the Chief Justice the Globe headline was

Chief justice blasted over Mass. voting ‘cheap shot’

Talk about feeling insulted!  The nerve to compare us to Mississippi!

“Do you know which state has the worst ratio of white voter turnout to African-American voter turnout?” Roberts asked Donald Verrilli Jr., solicitor general for the Department of Justice, during Wednesday’s arguments.

“I do not know that,” Verrilli answered.

“Massachusetts,” Roberts responded, adding that even Mississippi has a narrower gap.

Roberts later asked if Verrilli knew which state has the greatest disparity in registration. Again, Roberts said it was Massachusetts.

The problem is, Roberts is woefully wrong on those points, according to Massachusetts Secretary of State William F. Galvin, who on Thursday branded Roberts’s assertion a slur and made a declaration of his own. “I’m calling him out,” Galvin said.

Galvin was not alone in his view. Academics and Massachusetts politicians said that Roberts appeared to be misguided. A Supreme Court spokeswoman declined to offer supporting evidence of ­Roberts’s view, referring a ­reporter to the court transcript.

On Thursday,  Galvin tried to set the record straight. “We have one of the highest voter registrations in the country,” he said, “so this whole effort to make a cheap-shot point at Massachusetts is deceptive.”

Map of Section 5 Covered Jurisdictions

Map of Section 5 Covered Jurisdictions (Photo credit: Wikipedia)

So what’s going on here?  Trust Nate Silver to explain.

Section 5 of the Voting Rights Act, which is being challenged by Shelby County, Ala., in the case before the court, requires that certain states, counties and townships with a history of racial discrimination get approval (or “pre-clearance”) from the Department of Justice before making changes to their voting laws. But Chief Justice Roberts said that Mississippi, which is covered by Section 5, has the best ratio of African-American to white turnout, while Massachusetts, which is not covered, has the worst, he said.

Chief Justice Roberts’s statistics appear to come from data compiled in 2004 by the Census Bureau, which polls Americans about their voting behavior as part of its Current Population Survey. In 2004, according to the Census Bureau’s survey, the turnout rate among white voting-aged citizens was 60.2 percent in Mississippi, while the turnout rate among African-Americans was higher, 66.8 percent. In Massachusetts, conversely, the Census Bureau reported the white turnout rate at 72.0 percent but the black turnout rate at just 46.5 percent.

As much as it pleases me to see statistical data introduced in the Supreme Court, the act of citing statistical factoids is not the same thing as drawing sound inferences from them. If I were the lawyer defending the Voting Rights Act, I would have responded with two queries to Chief Justice Roberts. First, are Mississippi and Massachusetts representative of a broader trend: do states covered by Section 5 in fact have higher rates of black turnout on a consistent basis? And second, what if anything does this demonstrate about the efficacy of the Voting Rights Act?

Turns out that the Current Population Survey has a very high margin of error.

One reason to be suspicious of the representativeness of Mississippi and Massachusetts is the high margin of error associated with these calculations, as noted by Nina Totenberg of NPR.

Like other polls, the Current Population Survey is subject to sampling error, a result of collecting data among a random subsample of the population rather than everyone in the state. In states like Massachusetts that have low African-American populations, the margin of error can be especially high: it was plus-or-minus 9.6 percentage points in estimating the black turnout rate in 2004, according to the Census Bureau. Even in Mississippi, which has a larger black population, the margin of error was 5.2 percentage points.

The other problem is that the Chief Justice was using 2004 figures when the 2010 numbers had a lower margin of error.  So what, if any thing can we conclude.

In the chart below, I have aggregated the 2004 turnout data into two groups of states, based on whether or not they are covered by Section 5. (I ignore states like New York where some counties are subject to Section 5 but others are not.) In the states covered by Section 5, the black turnout rate was 59.2 percent in 2004, while it was 60.8 percent in the states that are not subject to it. The ratio of white-to-black was 1.09 in the states covered by Section 5, but 1.12 in the states that are not covered by it. These differences are not large enough to be meaningful in either a statistical or a practical sense.

So did Chief Justice Roberts misconstrue the data? If he meant to suggest that states covered by Section 5 consistently have better black turnout rates than those that aren’t covered by the statute, then his claim is especially dubious. However, the evidence does support the more modest claim that black turnout is no worse in states covered by Section 5. There don’t seem to be consistent differences in turnout rates based on whether states are covered by Section 5 or not.

The bigger potential flaw with Chief Justice Roberts’s argument is not with the statistics he cites but with the conclusion he draws from them.

And here what Silver thinks we should be asking.

…the fact that black turnout rates are now roughly as high in states covered by Section 5 might be taken as evidence that the Voting Rights Act has been effective. There were huge regional differences in black turnout rates in the early 1960s, before the Voting Rights Act was passed. (In the 1964 election, for example, nonwhite turnout was about 45 percent in the South, but close to 70 percent elsewhere in the country.) These differences have largely evaporated now.

How much of this is because of the Voting Rights Act, as opposed to other voter protections that have been adopted since that time, or other societal changes? And even if the Voting Rights Act has been important in facilitating the changes, how many of the gains might be lost if the Section 5 requirements were dropped now?

To put it nicely, the Chief Justice is using correct statistics to come to not only the incorrect conclusion, but also to ask the wrong questions.  Silver concludes

These are difficult questions that the Supreme Court faces. They are questions of causality – and as any good lawyer knows, establishing a chain of causality is often the most difficult chore in a case.

Statistical analysis can inform the answers if applied thoughtfully. But statistics can obscure the truth when they become divorced from the historical, legal and logical context of a case.

We can only hope that some law clerk at the Supreme Court reads FiveThirtyEight and talks to enough Justices.  Given all the shenanigans going on in Section 5 covered and not covered states on voting rules, now is not the time to over turn this modest brake insuring voting rights.

Official 2005 photo of Chief Justice John G. R...

Official 2005 photo of Chief Justice John G. Roberts (Photo credit: Wikipedia)

The curious story of Mary Paine

Mary Paine died in 1713 at 15 months.  Hardly the making of a life story, but there she was on the front page of the Metro section of the Boston Globe this morning.

It seems that in 1955, a 20 year old sailor, Roland McCandlish found Mary’s tombstone in a Copp’s Hill Burying Ground shed.  He took it with him back to his ship at the Charlestown Navy Yard.

From there, the vessel visited exotic ports of call, from Greenland to Haiti to Puerto Rico. When he returned home to California for good, he used the stone as a small but cherished ­table.

“I never thought of it as a tombstone; I thought of it as Mary,” McCandlish, now 79, said by phone Thursday. “She had, through me, the life she never­ had. She was a part of my life.”

McCandlish mailed it back to Boston.

McCandlish, in declining health and thinking about a headstone of his own, decided it was time to send the headstone back. He packaged it up, along with a photo of himself as a young sailor holding the stone, and a letter explaining the tale of its travels.

And I think this is my favorite part of the story.

McCandlish said parting with the relic was not easy. They’d made memories together.

He recalled when his Navy captain found the headstone stashed in a filing cabinet on the ship and called McCandlish into his office to explain.The captain laughed at his story.

“He reacted differently than others might,” McCandlish said. “He put it in the bottom drawer of the filing cabinet and said, ‘We’ll call it our dead file.’ ”

So the headstone will be reset next to the grave of her mother in the next few months and her travels will come to an end.

The headstone of Mary Paine, who died Dec. 31, 1713, at 15 months old, was discovered by Roland McCandlish during a 1955 tour of Copp’s Hill Burying Ground in the North End of Boston.

The headstone of Mary Paine, who died Dec. 31, 1713, at 15 months old, was discovered by Roland McCandlish during a 1955 tour of Copp’s Hill Burying Ground in the North End of Boston.

Photograph credited to Old North Church.

The end-of-life decision

I’m sure that everyone has heard the tape of the 911 call or read the transcript.  An unidentified nurse at an independent living facility refused to do CRP on a resident who had collapsed.  The resident. 87 year old, Lorraine Bayless, collapsed in a dining room.  The New York Times published the transcript of part of the call

“She’s going to die if we don’t get this started. Do you understand?” the 911 dispatcher asked.

“I understand,” the nurse said. “But I cannot have our other citizens who don’t know CPR do it.”

“Is there anyone that’s willing to help this lady and not let her die?” the exasperated dispatcher said a bit later.

“Um, not at this time,” the nurse replied.

For me the most shocking part of this story is not that no CPR was performed, but that the nurse in question evidently thought she was following company policy.  The Boston Globe story elaborates

During the dramatic 7-minute, 16-second call, dispatcher Tracey Halvorson urged the nurse, who has not been identified, to start CPR. The nurse declined, citing company policy.

‘‘I understand if your boss is telling you, you can’t do it,’’ the dispatcher said. ‘‘But . . . as a human being . . .  you know, is there anybody that’s willing to help this lady and not let her die?’’

‘‘Not at this time,’’ the nurse answered.

Halvorson assured the nurse that Glenwood couldn’t be sued if anything went wrong in attempts to resuscitate the resident, saying the local emergency medical system ‘‘takes the liability for this call.’’

Later in the call, Halvorson asked, ‘‘Is there a gardener? Any staff, anyone who doesn’t work for you? Anywhere? Can we flag someone down in the street and get them to help this lady? Can we flag a stranger down? I bet a stranger would help her.’’

Now comes the firestorm and many, many questions.  Did Ms. Bayless have a DNR on file and did staff know about it?  Even if the independent living facility was “just housing”, don’t people just have an ordinary responsibility to each other to help and not just let someone die?  What was the policy really?  And were there other residents there who saw all this happening?

Like many people of my age, I am very familiar with this type of facility since my mother lived in one for many years.  Yes, she owned her own unit for most of those years and had a kitchen but she also was required to pay for one meal a day in a common dining room.  This is a common practice to help prevent isolation.  The facility also provided recreational activities including exercise classes, trips, a bus to go shopping and a nurse on site.  My mother had a DNR, but I’m not sure who knew about it until she moved into the assisted living section of the facility.  There all the staff knew.  Somehow I cannot begin to imagine that one of the staff in the dining room would not have started CPR if someone collapsed and started breathing.  My mother once choked and a wait staff member did the Heimlich on her.  And I saw other medical emergencies in which staff intervened even while waiting for the EMT’s to arrive.

So what went wrong here?  The NYT article points out the CPR can hurt frail elders more than it can help them.

In one study conducted in King County, Wash., where a surveillance system tracks every out-of-hospital cardiac arrest, University of Washington researchers found that only 9.4 percent of octogenarians and 4.4 percent of nonagenarians survived after CPR, compared with 19.4 percent of younger patients.

In another study of 2,600 out-of-hospital cardiac arrests over four and a half years in Oakland County, Mich., only 3.3 percent of patients over age 80 who received CPR survived to discharge from the hospital.

Even when older people survive CPR, the consequences can be deleterious: broken ribs and fractured sternums, punctures of the lungs or liver, vomit in the lungs and significant pain. Those who argue for CPR in the elderly say these complications, while serious, are preferable to death. Others say quality of life can be, and often is, terribly degraded.

Ms. Bayless’ family has expressed peace of mind with the decision saying that their mother wanted to go quickly, without intervention and given the potential consequences, I can understand their point of view.  But given that fact, why was there no DNR order on file?

Meanwhile everyone is investigating the need for clearer policies, the need for possible legislation and even the possibility of a criminal case.  According to the Globe

…the case has alarmed police, lawmakers, and advocates for the elderly. The Assisted Living Federation of America, the nation’s largest trade group for such centers, said Tuesday that even if facilities have policies saying employees don’t perform CPR, they should cooperate if asked by 911 dispatchers.

‘‘It was a complete tragedy,’’ said Maribeth Bersani, senior vice president of the trade group. “Our members are now looking at their policies to make sure they are clear.’’

Bakersfield police were trying to determine whether a crime was committed when the nurse refused to assist the 911 dispatcher.

And lawmakers are pledging an investigation.

‘‘This is a wakeup call,’’ said Assemblywoman Mariko Yamada, chair of the California Assembly Aging and Long-term Care Committee. ‘‘I’m sorry it took a tragedy like this to bring it to our attention.’’

For me the bottom line is this from the New York Times

There is another lesson here as well, much broader in scope, about what people owe each other in emergencies of this kind. Whether or not we have medical training, “all of us have a duty to respond to people in life-threatening situations,” said Dale Jamieson, director of the Center for Bioethics at New York University. “This is a general ethical commitment we have to each other as part of living in society.”

The main gate of Glenwood Gardens, a retirement community in Bakersfield, Calif., where an elderly woman died after a nurse refused to perform CPR

The main gate of Glenwood Gardens, a retirement community in Bakersfield, Calif., where an elderly woman died after a nurse refused to perform CPR

What develops from this incident will impact all of us boomers as we age.  And for younger people, this might be your parent.